Compensation for Discrimination Cases
As an overview, compensation for discrimination cases can be claimed for:
- Loss of earnings;
- Injury to feelings;
- Damages for personal injury; and
- Aggravated damages.
In extremely rare cases, employees may be awarded exemplary damages (also known as punitive damages). These damages are an amount in excess of the Claimant's loss and are used to deter similar behaviour by the employer in the future.
Injury to feelings is separate from an award for financial loss and this can be claimed even when a Claimant has suffered no financial loss.
As of 6 April 2019, the bands for injury to feelings awards have been increased for discrimination cases.
Compensation for Injury to Feelings
Injury to feelings looks at the degree of hurt, distress or upset caused, the position of the person found to be discriminatory, the seriousness of the treatment and the vulnerability of the Claimant.
An injury to feelings award is intended to be compensatory and is not awarded to punish the employer.
Compensation for injury to feelings is set out in three bands of awards which are derived from the case of Vento v Chief Constable of West Yorkshire and are also known as ‘Vento bands’.
The lower band is for cases which may be a one off incident, the middle band is for cases that are more than a one off incident but do not merit an award in the upper band and the upper band is for those cases which involve numerous, serious incidents with a long history of discrimination.
However, it should be noted that Tribunals are not restricted by the bands if due to the specific facts of the case they believe a different band should be awarded. For example just because a Tribunal claim relates to a one-off act of discrimination it does not mean the Tribunal has to limit the award to the lower band if it is appropriate to award the Claimant a higher band. This was shown in the recent EAT case of Base Childrenswear Ltd v Otshudi where an isolated discriminatory event was awarded an injury to feelings amount in the middle Vento band in the sum of £16,000.
So what is new?
New guidance came in to force on 6 April 2019 increasing the amount of money that can be awarded under these bands as shown in the table below with a comparison to the previous Vento bands. Please note that claims presented in Scotland are calculated slightly differently.
|Band||Amount for claims presented on or after 6 April 2018 to 5 April 2019||Amount for claims presented on or after 6 April 2019|
|Lower band (for less serious cases)||£900 to £8,600||£900 to £8,800|
|Middle band (cases that do not merit an award in the upper band)||£8,600 to £25,700||£8,800 to 26,300|
|Upper band (the most serious cases)||£25,700 to £42,900||£26,300 to £44,000|
For a case to exceed the upper band award it must be most exceptional.
Possible Defence in Discrimination Cases
Employers are vicariously liable for acts done by their employees in the course of their employment, which includes discrimination. To have a defence for being vicariously liable, the employer must show they have taken ‘all reasonable steps’ before the discrimination takes place, to prevent the employee from being discriminatory.
Tribunals look at the steps the employer has taken and any other reasonable steps the employer could have then taken to avoid the discrimination.
What should employers do to reduce/help defend discrimination claims?
Employers could take the following steps to reduce the risks and/or defend discrimination claims in their workplace:
- Having, implementing and reviewing policies (such as an equal opportunities and an anti-harassment and bullying policy).
- Using an action plan to support the equal opportunities policy which sets out the steps that will be taken to ensure it will be achieved.
- Providing support and training for all staff which is regularly updated.
- Taking ‘positive action’ in hiring and promoting staff with protected characteristics if appropriate.
- Making sure that appropriate steps are taken to deal with any complaints including disciplinary action, if suitable.
For further information and guidance please visit:
Equality and Discrimination: Understand the basics http://m.acas.org.uk/media/pdf/1/0/Equality_discrim_understand_basics_Nov.pdf
Prevent discrimination: Support equality http://m.acas.org.uk/media/pdf/k/k/Prevent_discrimination_June_2018.pdf